1. This is a plaintiff's appeal arising out of a suit for recovery of possession. This suit could have been dismissed on the ground much simpler than the one on which the lower appellate Court has dismissed it, though even that ground is sound.
2. The defendant obtained a simple money decree against the plaintiff's father and attached his one-fourth share in a joint family property which belonged to the father and his brothers. Under the Privy Council ruling of Suraj Bunsi Koer v. Sheo Persad Singh (1880) 5 Cal. 148, the father's interest could be attached and seized in his lifetime. It was put up for sale and purchased at auction by the decree-holder himself. The decree-holder, however, did not apply for delivery of possession and the father died. Subsequently the plaintiff's uncles brought a suit for partition against the decree-holder-purchaser impleading the present plaintiff as a defendant. In this partition suit four lots were prepared and one lot consisting of a one-fourth share was allotted to the defendant who had purchased the share of the plaintiff's father. This decree became final. After this decree defendant applied to the Execution Court and got a formal delivery of possession on the 24th of October, 1922. Subsequent to the delivery of possession the present plaintiff filed an objection to the Court saying that the application for delivery of possession was barred by time inasmuch as it had been filed more than three years after the sale. The Court however, dismissed the objection and upheld the delivery of possession against the plaintiff. The plaintiff has now brought a separate suit for recovery of possession and the main ground on which the suit is based is that the application for delivery of possession was barred by time and, therefore, he is not bound by the proceedings relating to the delivery of possession. His contention, in my opinion, cannot be accepted.
3. The first difficulty in the way of the plaintiff is that under a partition decree to which he himself was a party the defendant has been given one-fourth share in a separate lot. In some way or other, assuming that it was an irregular way, the defendant has succeeded in obtaining possession of this one-fourth share allotted to him. In face of the partition decree the plaintiff who has no title has no right to recover it back from him. The suit, therefore, ought to be dismissed on this simple ground.
4. The lower Appellate Court has however, dismissed it on the ground that though the decree obtained by defendant for the possession of the house had become incapable of execution by lapse of time, the right established by it remained, and though such right could not be enforced by execution through Court the defendant could enter by ousting any trespasser including the plaintiff. Here again the lower appellate Court's language is altogether inaccurate.
5. The execution did not become barred by lapse of time. The decree had been fully executed and the property had been put up for sale and sold. It was not the execution which was barred by time but the application for delivery of possession of the property purchased by the auction-purchaser. The ground underlying the decision of the lower appellate Court, however, still holds good. The auction-purchaser has two remedies open to him. He may either have recourse to a summary remedy and apply to the Court under Order 21, Rule 95, for delivery of possession against the judgment-debtor or he may not seek that summary remedy but may bring a regular suit for recovery of possession against his judgment-debtor for which the period of course would be 12 years. It is, therefore, manifest that even if his summary remedy be barred by time his remedy to bring a regular suit for recovery of possession is not barred till 12 years have expired. If before the expiry of the time allowed for this other remedy he somehow or other obtains possession of the property he cannot then be ousted by a person who in the eye of the law has no title.
6. The learned Vakil for the appellant has relied on the case of Ram Dulari v. Balakram A.I.R. 1915 All. 111. That case is distinguishable in the first place because there it was the judgment-debtor who had brought a suit for partition and not the decree-holder purchasing himself. Furthermore, in the present case the interest of the plaintiff's father had been attached in his lifetime, which must be deemed to be a distinct and separate property. When that interest was put up for sale and sold, then prima facie, in spite of the words 'right, title and interest,' of the judgment-debtor in the proclamation of sale, the whole interest of the family represented by the plaintiff's father passed; vide the case of Sripat Singh v. Prodyot Kumar Tagore AIR 1916 PC 220.
7. The appeal is accordingly dismissed under Order 41, Rule 11.